Commentary on Canadian Labour and Employment Law Issues

January 15, 2014

Progressive Discipline and Collective Agreements

Progressive discipline and performance management is part of the employment relationship. It’s a part that most managers and employees would like to avoid. But it’s reality and critically important to business and individual success.

This was a discharge case. The grievor, a yardman, was terminated as a result of a violation of the Company’s Code of Conduct. Specifically, the grievor was discharged for violating the employer’s personal protective equipment (“PPE”) policy. He had, on his record, a “Stage 2 discipline (written warning) for not following the Employer’s PPE policy, in particular not wearing a hard hat in areas of the plant that required him to have one on.” This was not grieved.

There was a requirement to wear a hard hat while driving the forklift. It seems that the policy “…. was ill considered and stupid in so far as it applied to him when he was driving the forklift.” and he voiced this concern. The arbitrator described the matter as follows:

What emerges is that, despite his performing well on the job, the grievor did not like wearing a hard hat, and once the new stricter policy was introduced, took it upon himself to resist the policy by refusing to comply when it suited him not to……

The grievor’s attitude at the time was aptly summed up in his own words. He concedes he was “upset, frustrated, pig-headed” and, as a consequence had decided to “push the boundaries on this”. In short, while he understood the company’s policy, he felt it appropriate to resist its application in his case in the hope it might change, or his non-cooperation might go unchallenged. However, in the end he learnt the truth of the old Russian proverb “Man who kicks the world hurts his foot”.

In the week leading to his termination, the grievor was seen “a couple of times on the same day without wearing his hard hat when told to do so”.

A meeting was convened between the union representative, the grievor and the Company’s HR representative. Following that meeting, the employer continued to believe that the grievor had not changed so far as the PPE was concerned. The Company terminated the grievor’s employment the following week (thus going from a written warning to termination).

The main issue in this case was whether “ the Employer was contractually obliged, by Article 31.02, to use progressive discipline in the form of a suspension before resorting to termination.” Article 31.01 and 31.02 provide as follows:

31.01 The parties recognize the importance of undertaking pro­gressive disciplinary action to address job-related behavior in the event that an employee is not meeting expected performance standards, with the objective of correcting behavior and improving employee performance.

31.02 The Employer will ensure that a progressive disciplinary action process is in place and applied consistently. This process includes a series of progressive corrective steps (based on the severity of the behavior or conduct in question) to address employee performance concerns or specific incidents. (emphasis in award)

The Arbitrator reviewed a number of cases and authorities dealing with progressive discipline and considered the Collective Agreement and concluded:

By Article 31.02, the Employer has committed itself to the use of a progressive discipline process. That process is well understood. The Employer has a policy that reflects customary practice. The “progressive” in progressive discipline does not simply mean well intentioned or enlightened, it means sequential, with (absent exceptional circumstances) escalating punishment imposed for corrective purposes. The Employer here chose, out of understandable frustration over the grievor’s challenging conduct and attitude, self-described as “stupid and pigheaded”, to skip the customary suspension that would usually follow a written warning and proceed straight to termination.

The concept of industrial discipline and the use of the suspension recognizes that employees can sometimes be stubborn and irrational, and sometimes they can fail to act on the warnings and guidance, however supportive and well intentioned, they receive. A suspension, particularly one of several days, is both real punishment and the clearest warning that the employee is close to termination. Sometimes conduct does not change until that point is reached. But once it is, they often do change. If they choose not to, then termination often follows.

The Arbitrator concluded that it could not be “reasonably said” that, on the facts of the case, “a suspension would have been pointless or ineffective.” Termination was “not the only viable option”. As such, a suspension was called for.

The union here negotiated a provision into the collective agreement that required the employer to consistently use progressive discipline and “moving straight to termination”, in this case, was a “breach of that commitment”. It seems that, even if the language was not in the collective agreement, the arbitrator would have found that the discharge was excessive based on a variety of mitigating factors.

Significance

I suppose the broad significance of this decision for employers is to highlight that they should understand that collective agreement language limits their ability to manage their business. Don’t just include language in the collective agreement blindly. Consider the significance of the language, the implications and how it will limit or restrict the ability of the employer to manage the business.

More directly, the case emphasizes the need to exercise patience when disciplining. On the facts of the case, it is clear that the employer was frustrated by the grievor’s intransigence and resistance to its directives.

As an employer, simply based on the facts reported in the case (including the “challenging conduct” described in the decision), would you have gone to termination, or would you have imposed a suspension?

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